Comparative and Foreign Law Commons^™

Germany Vs. Europe: The Principle Of Democracy In German Constitutional Law And The Troubled Future Of European Integration, Russell A. Miller

Scholarly Articles

This Article introduces the Demokratieprinzip. In Part II, I begin by more fully documenting the Euro-skeptical turn in Germany's relationship with Europe, paying particular attention to the central role played by the Constitutional Court's interpretation of the Demokratieprinzip. Part III, in four subparts, provides a doctrinal introduction to the principle of democracy. First, I map the principle's bases in the text of the German Grundgesetz (Basic Law or Constitution). Second, I present the gloss the Constitutional Court has given the principle, making special reference to the Court's recent decisions involving challenges to Germany's participation in measures seeking to advance European …

La Huella De Ius Et Veritas, Fernando Loayza Jordán

Scholarly Articles

Antes de escribir estas líneas, no pude evitar revivir los episodios más significativos de mi estadía en IUS ET VERITAS. El día en que anunciaron mi ingreso a la Asociación. Las interminables sesiones de edición y revisión. Las amanecidas. Las correrías previas a los eventos y la satisfacción de llenarlos. El día que me eligieron Director de Publicaciones. Las larguísimas sesiones de Consejo Directivo. Aquella memorable conversación tras la cual decidí postularme como Director Ejecutivo. Las reprimendas en el trabajo cuando llegaba tarde por alguna reunión de la Asociación. Ese evento en Tacna el fin de semana antes de finales. …

¿Y Si No Me Quiero Separar Así? Flexibilizando El Derecho De Separación, Fernando Loayza Jordán

Scholarly Articles

El autor realiza una crítica pormenorizada al artículo 200 de la Ley General de Sociedades, críticaen la cual, propone el cambio de la categoría imperativa de la norma por una de categoría dispositiva. Establece supuestos que beneficien a la separación a favor de los inversionistas y accionistas minoritarios. Propone una regulación atractiva para hacer que las transferencias de acciones sean más dinámicas y atractivas. Todo lo anterior, con el fin de beneficiar los intereses tanto de la sociedad como de los accionistas, tutelando sus derechos de manera más efectiva.

A Monolithic Threat: The Anti-Sharia Movement And America’S Counter-Subversive Tradition, Ross Johnson

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Honor As Property, Johanna E. Bond

Scholarly Articles

This Article is the first to use a property lens to explore the social construction of honor within legal systems around the world. The Article makes the claim that the law in many countries has implicitly treated honor as a form of property and has made legal and social allowances for men who seek to reclaim honor property through violence. The Article expands the boundaries of the existing scholarship concerning honor-related violence by exploring the intersections between social constructions of honor and social constructions of property. Using a property lens to analyze the relationship between honor, patriarchal control, and law …

¿Registrar Es Poseer? Un Vistazo Desde El Fundamento De La Posesión, Martín Mejorada Chauca, Fernando Loayza Jordán

Scholarly Articles

Este breve ensayo presenta de forma introductoria un postulado novedoso: entender al acto de registrar como un acto posesorio. Se inicia con una revisión del fundamento de la posesión, desde la perspectiva de su utilidad práctica como herramienta de publicidad, para luego enfocarse en cómo, desde este fundamento, se debe entender que el acto de registrar es un acto posesorio. Posteriormente, se profundiza en algunas características de esta clase de posesión en específico, como su extensión temporal. Finalmente, se termina enunciando algunas consecuencias prácticas indubitables, cuyo posterior estudio exige atención prioritaria.

This brief introductory essay presents a new postulate: to …

The French Prosecutor In Question, Jacqueline S. Hodgson

Washington and Lee Law Review

Both the pre-trial and dispositive roles of the French prosecutor have continued to expand over the last decades with a resulting shift in power away from the trial judge and the juge d'instruction. The recommendations of the Liger Commission in 2009 went beyond the redistribution of authority and proposed the abolition of the juge d'instruction, placing the prosecutor in charge of all criminal investigations, even the most serious, complex, and sensitive. At the same time, the prosecutor's role and status has been challenged in a number of ways-in particular concerning her function as judicial supervisor of the detention and interrogation …

Uncertainty And The Search For Truth At Trial: Defining Prosecutorial "Objectivity" In German Sexual Assault Cases, Shawn Marie Boyne

Washington and Lee Law Review

According to German legal scholar, Claus Roxin, German prosecutors are the "most objective civil servants" in the world. Roxin 's assessment of German prosecution practice reflects the conviction of many German legal scholars that prosecutors in Germany's inquisitorial system function as second judges dedicated to finding the objective "truth." In this Article I investigate how prosecutors "translate" the normative duty of objectivity enshrined in the German penal code into observable practices on the ground I examine prosecutorial decision-making in three sexual assault trials. Sexual assault cases pose unique challenges to prosecutors as well as to the definition of objectivity. Because …

Does The World Need Knights Errant To Combat Enemies Of All Mankind? Universal Jurisdiction, Connecting Links, And Civil Liability, Zachary Mills

Washington and Lee Law Review

No abstract provided.

Compensatory Discrimination In India Sixty Years After Independence: A Vehicle Of Progress Or A Tool Of Partisan Politics?, Karthik Nagarajan

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Global Health Care Financing Law: A Useful Concept?, Timothy Stoltzfus Jost

Scholarly Articles

No abstract provided.

Rape And The Exception In Turkish And International Law, Ruth A. Miller

Washington and Lee Law Review

This Comment suggests, first, that Turkey's new (2004) rape law is indebted to recent trends in international sexual legislation, and second, that both Turkish and international rape law are in turn the product of a century of European exceptionalism. The 2004 Turkish criminal code is a text that has redefined the Turkish state's approach to issues ranging from torture to corruption to immigrant smuggling to rape and adultery. Fundamentally a domestic document, it is aimed at rearticulating and liberalizing the state-citizen relationship in Turkey. At the same time, it is emphatically an international text-a spectacle geared toward moving Turkey one …

Twenty-Five Years Of Hudood Ordinances- A Review, Martin Lau

Washington and Lee Law Review

Shortly after coming into power in 1979, General Zia ul-Haq began to Islamize the Pakistan legal system. One measure used to convert Pakistan into an Islamic state was the introduction of hadd offenses-those offenses for which the Qur'an prescribed fixed punishments-into the criminal law. This Article specifically examines the impact of one of these provisions, the Offense of Zina (Enforcement of Hudood) Ordinance, on sexual offenses under the Pakistan Penal Code. This statute criminalized all forms of adultery and fornication outside of a legally valid marriage, including instances of rape where the burden of proof had not been met. In …

The Legacy Of Colonialism: Law And Women's Rights In India, Varsha Chitnis, Danaya Wright

Washington and Lee Law Review

The relationship between nineteenth century England and colonial India was complex in terms of negotiating the different constituencies that claimed an interest in the economic and moral development of the colonies. After India became subject to the sovereignty of the English Monarchy in 1858, its future became indelibly linked with that of England's, yet India's own unique history and culture meant that many of the reforms the colonialists set out to undertake worked out differently than they anticipated. In particular, the colonial ambition of civilizing the barbaric native Indian male underlay many of the legal reforms attempted in the nearly …

The Overlooked Costs Of Religious Deference, Robin Fretwell Wilson

Washington and Lee Law Review

Citing the Qur'an, a German divorce court judge this year denied a fast track divorce to a Muslim woman who had been the victim of domestic violence and death threats from her husband. The judge rejected her application because the husband's exercise of his "right to castigate does not fulfill the hardship criteria" for an expedited divorce. The decision, which sparked a firestorm of controversy, comes at an important time in the movement to embrace pluralistic understandings of family relationships. Scholars and policymakers around the world are advancing various schemes for sharing state control over domestic disputes with religious groups-ranging …

Marital Property In California And Indonesia: Community Property And Harta Bersama, Mark E. Cammack

Washington and Lee Law Review

One of the more notable features of Indonesian Islamic law is its recognition of the concept of jointly owned marital property. The Indonesian doctrine of joint marital property bears a striking similarity to the community property system in California. In both systems the marital estate consists of property acquired during the marriage through the efforts of either of the spouses. Both systems distinguish marital property from separate property and both define separate property as all property owned by either spouse prior to the marriage or acquired by gift or inheritance afterwards. Apart from their doctrinal similarity, Indonesian Islamic marital property …

"Big Love"'?* The Recognition Of Customary Marriages In South Africa, Penelope E. Andrews

Washington and Lee Law Review

This Comment contextualizes the issue of polygamous marriages within the South African constitutional paradigm, one committed unequivocally to the principle of equality. This Comment analyzes how South African law, European in origin, had to incorporate the laws and institutions of indigenous communities within the national legal framework, as part of the overall transformative legal project underway in the country since 1994. By focusing on the Recognition of Customary Marriages Act, this Comment examines such incorporation, while questioning its effect on the overall project of constitutionalism, human rights, and equality

Lessons From Islamic Polygamy: A Case For Expanding The American Concept Of Surviving Spouse So As To Include De Facto Polygamous Spouses, Michele Alexandre

Washington and Lee Law Review

While polygamy is illegal in the United States, forms of it are still practiced either overtly, pursuant to religious traditions, or covertly, by the maintenance of two or more family units. As a result, any claims, disputes, or abuses that arise in the context of de facto polygamous unions remain irremediable. My focus, in this Article, is not to advocate that polygamy should be legally recognized. Nor is it my purpose to debate the viability or morality of polygamy. Instead, I am concerned with affording legal remedies for vulnerable individuals living and operating in de facto polygamous unions. In light …

Tunisia At The Forefront Of The Arab World: Two Waves Of Gender Legislation, Mounira M. Charrad

Washington and Lee Law Review

Starting in the 1950s and ever since, Tunisia has implemented gender legislation expanding women's rights in family law. The ground breaking phase occurred with the promulgation of the Code of Personal Status in the mid-1950s during the formation of a national state in the aftermath of independence from French colonial rule. Another major phase occurred in the 1990s with citizenship law reforms as embodied in the Tunisian Code of Nationality. As a result of these two major phases, Tunisia has been at the fore front of "woman friendly" legislative changes in the Arab- Muslim world and is widely recognized as …

Justice And Equality In Muslim Family Laws: Challenges, Possibilities, And Strategies For Reform', Zainah Anwar, Jana S. Rumminger

Washington and Lee Law Review

One of the subtle but most pervasive areas of discrimination against women in the Muslim world today is the inequality that occurs within the context of the family. Throughout Muslim countries and contexts, Muslim women are speaking out about such discrimination and are fighting for reform of family laws to promote justice and equality within the family. This Article outlines key discriminatory provisions within Malaysia's Islamic Family Law (Federal Territories) Act of 1984 and the efforts being made by Muslim women in Malaysia to advocate for comprehensive reform of Malaysian Muslim family laws. This effort includes developing an understanding of …

The Future Of Palestinian Women's Rights: Lessons From A Half-Century Of Tunisian Progress, Adrien Katherine Wing, Hisham Kassim

Washington and Lee Law Review

No abstract provided.

Moroccan Women In Europe: Bargaining For Autonomy, Marie-Claire Foblets

Washington and Lee Law Review

This Article explores the path of possibilities offered in the case of Moroccans-in particular women-residing in (continental) Europe to determine, up to a point, the legal regime that will apply to their family life. The vast majority of Moroccans currently living in Europe have retained their original nationality, often combining it with that of the country of habitual residence. Adhesion to Islam often explains the attachment to the family law, which is a religious law, of the country of origin. Family reunifications in many cases mean enduring "rootedness" in the normative system of the country of origin. With mobility rendered …

How The Door Of Ijtihad Was Opened And Closed: A Comparative Analysis Of Recent Family Law Reforms In Iran And Morocco, Ziba Mir-Hosseini

Washington and Lee Law Review

This Comment compares the politics and dynamics of recent family law reforms in Iran and Morocco. In both countries, reforms have in effect crippled men's privileges in marriage under Islamic law by restricting their unilateral and extra-judicial rights to divorce and polygyny. In Morocco, the 2004 reforms are radical in that they admit the principle of equality in marriage and cast classical Maliki School of Sunni law in a new light; the result of prolonged efforts by the women's movement, these reforms were finally achieved by the intervention of the King who claimed the right of ijtihad as the Commander …

Daughters Of The Nile: The Evolution Of Feminism In Egypt, Mohamed Younis

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Comment On Brian R. Cheffins, Dividends As A Substitute For Corporate Law: The Separation Of Ownership And Control In The United Kingdom, Lynne L. Dallas

Washington and Lee Law Review

No abstract provided.

Dividends As A Substitute For Corporate Law: The Separation Of Ownership And Control In The United Kingdom, Brian R. Cheffins

Washington and Lee Law Review

No abstract provided.

Personification In Three Legal Cultures: The Case Of The Conception Of The Corporate Unit, Gregory A. Mark

Washington and Lee Law Review

No abstract provided.

The Transplantation Of The Legal Discourse On Corporate Personality Theories: From German Codification To British Political Pluralism And American Big Business, Ron Harris

Washington and Lee Law Review

No abstract provided.

The Relevance Of Corporate Theory To Corporate And Economic Development: Comment On The Transplantation Of The Legal Discourse On Corporate Personality Theories, Lawrence E. Mitchell

Washington and Lee Law Review

No abstract provided.

Comparing Religions, Legally, Winnifred Fallers Sullivan

Washington and Lee Law Review

No abstract provided.